University of Arkansas at Little Rock Law Review


Derek Warden

Document Type



In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign immunity; and as such, a plaintiff could not obtain damages against the states or sue the states directly for injunctive relief. Many courts and scholars have read Garrett as sounding the death knell for ADA Title I government employee plaintiffs. This article shows that such fears are misplaced. Indeed, this article offers four pathways around Garrett that show Title I and its requirements are very much alive and well. First, the article shows that traditional civil rights doctrines allow government employees to sue their employers either for damages or injunctive relief regardless of Garrett’s perceived holding. Second, the article shows how subsequent case law developed under Title II of the ADA allows Title I plaintiffs to sue the states for damages where the state conduct violates both Title I and the Constitution. Third, the article explores the ramifications of using Title II of the ADA as employment discrimination legislation instead of Title I and shows that the abrogation outcome is different. Finally, in the fourth pathway of this article, it is shown that because disability discrimination violates valid national policy legislation (passed under the Commerce Clause) any government interest manifested in such a way as to violate that policy-based law is illegitimate for purposes of equal protection rational basis scrutiny. As such, the fourth pathway argues all violations of the ADA amount to violations of the Fourteenth Amendment; and due to the analysis of the second pathway, Garrett should be totally overruled